§ 6-600. Context Examples

Since the 1974 decision in Lehman
v. City of Shaker Heights, 418 U.S. 298 (1974), this Court has relied
upon public forum analysis to decide cases in which persons have sought to use
government property for expressive activity in violation of rules which restrict
or prohibit such activity. SeeUnited States v. Kokinda, 497 U.S. 720,
725 (1990).

This Court has held that a site owned by the government
is a traditional public forum only if it is among "those places which 'by long
tradition or by government fiat have been devoted to assembly and debate."'
Cornelius, 473 U.S. at 802, quoting,
Perry Educ. Ass'n, 460 U.S. at 45. This
description hearkens back to the often-quoted passage from Hague
v. CIO, 307 U.S. 496 (1939):

Wherever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out
of mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the streets and public
places has, from ancient times, been a part of the privileges, immunities, rights,
and liberties of citizens.

Id. at 515.

The Port Authority airports' sole purpose of facilitating
air travel is reflected in all of their characteristics - planning, operation,
design, usage, financing, lack of integration with neighboring communities,
presence of captive audiences, and unique congestion and security problems.
These characteristics both attest to the special purpose of the Port Authority
air terminals and distinguish them from traditional public fora. In previous
cases, this Court has examined the nature of alleged public fora to determine
their public forum status. See,
e.g.,
Kokinda, 497 U.S. 720; Greer,
424 U.S. 824; Lehman, 418 U.S. 298 .

4. Captive Audiences

The presence of captive audiences in air terminals distinguish
such terminals from the traditional public fora of streets and parks. Captive
audiences exist throughout the air terminals  at enplaning and deplaning
points, at ticket counters, security checkpoints, baggage conveyor belts, and
car rental and other ground transportation counters. At all of these locations,
travelers tend to remain in place in order to complete travel-related tasks
(Superintendent's Statement at 58-60 (JA 458); Anderson Affidavit at 9 (JA 488)).
See Doughty, supra
note 13, at 7. As noted by Justice Douglas with regard to the patrons of public
transportation vehicles, the rights of such captive audiences "to
be free from forced intrusions on their privacy" would be violated if they were
forced to be the object of uninvited persuasion. Lehman,
418 U.S. at 307 (1974) (Douglas, J., concurring); cf.
Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n, 447 U.S. 530,
542 (1980).

This Court has explicitly stated that a public forum does
not exist merely because persons are freely permitted to enter a government
owned site. Indeed, the Court has ".
. . expressly rejected the suggestion that 'whenever members of the public are
permitted freely to visit a place owned or operated by the Government, then
that place becomes a "public forum" for purposes of the First Amendment.'"
United States v. Albertini, 472 U.S.
675, 686 (1985) (quotingGreer,
424 U.S. at 836); see
also United States v. Grace, 461 U.S. 171, 177 (1983).

Finally, it is equally clear that the usefulness of government
property as a site for expressive activity does not make such property a traditional
public forum under applicable Supreme Court precedent. In Members
of the City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984), which
held that lampposts are not public fora for the posting of signs, this Court
rejected in unequivocal terms the proposition that a publicly-owned facility
is a public forum because it would be a useful place for the communication of
ideas: "Lampposts can of course be used as signposts, but the mere fact that
government property can be used as a vehicle for communication does not mean
that the Constitution requires such uses to be permitted. Cf.
United States Postal Serv. v. Greenburgh Civic Ass'ns, 453 U.S. at 131."
Id. at 814 (footnote omitted); see also
Albertini, 472 U.S. at 686; Greer,
424 U.S. at 838 n.10.

Plaintiffs' reference to the alleged decline of downtown
street life by the development of skyways and other street alternatives in city
centers is clearly irrelevant to the issue at bar. The merits or demerits of
such developments should be debated by planning commissions or zoning boards
who determine the nature of our cities. See,
e.g., William H. Whyte, City
193-221 (1988). Any perceived failure of responsible planning bodies to foster
the development of urban streetscapes provides no basis for holding that the
Port Authority air terminals are public fora.

Second, the alleged role of rail terminals as public fora
is irrelevant because rail terminals, unlike Port Authority air terminals, are
located in the center of a city. If the concourse of Grand Central Station or
the waiting room of a small town rail depot served as a meeting place for people
going about their daily business, it was because the rest of the community was
a sidewalk's width away. See
H. Roger Grant & Charles H. Bohi, The Country
Railroad Station in America 8-9 (1978); William D. Middleton, Grand
Central 109 (1978). Clearly, the same is not true of the Port Authority's
air terminals. Although two people in Midtown Manhattan might agree to meet
"under the golden clock" of Grand Central Terminal whether or not they were
going to take a train, see William D. Middleton,
Grand Central 109 (1978), it is highly
unlikely that two people who had no intention of taking air flights would agree
to meet at any of the Port Authority airports.

Moreover, contrary to Plaintiff's assertions, as an historical
matter, it is far from clear that rail stations and terminals served as public
fora in the First Amendment sense. Plaintiffs fail to document that solicitation
and distribution of literature actually occurred at railroad terminals. Plaintiffs
also ignore the fact that railroad terminals were privately owned, and, therefore,
any solicitation or distribution of literature which took place was at the pleasure
of the private entities which owned the terminals. See
generally United Transp. Union v. Long Island R.R., 455 U.S. 678, 686
(1982); H. Roger Grant & Charles H. Bohi, The
Country Railroad Station in America 11-15 (1978).(22)

The distribution of literature has similar effects on
pedestrian flow. Air passengers must alter their path to avoid the distributor,
or pause to take literature and perhaps stop to read it or to throw it in a
wastebin. Significantly, Plaintiff's themselves concede that "literature distribution
. . . might well be as disruptive to a traveller 'hurrying to catch a plane
or to arrange ground transportation' as a request for a voluntary donation."
Petition for Writ of Certiorari at 22 (citation omitted). And, of course, if
Plaintiffs were entitled to engage in such activity, others would have the right
to do so as well. As noted by this Court in Heffron
v. ISKCON, "The inquiry must not only involve ISKCON, but all other organizations
that would be entitled to distribute, sell or solicit if the . . . rule may
not be enforced with respect to ISKCON." 452 U.S. 640, 654 (1981); accordClark v. Community for Creative Non-Violence,
468 U.S. 288, 296-97 (1984).

It is well established that even in a public forum, the
government is not powerless to regulate First Amendment activity. Although it
is true that all communication may not be excluded from a public forum, content-neutral
regulations may be enforced if they are reasonable and narrowly tailored to
serve significant governmental interests, and leave open ample alternative channels
of communication. E.g.,
Perry Educ. Ass'n v. Perry Local Educators'
Ass'n, 460 U.S. at 46; Clark,
468 U.S. at 293. The Port Authority's restriction of solicitation and distribution
of literature to sidewalks adjacent to air terminal buildings satisfies this
test.

If the only purpose of section 632-a
was to compensate victims, however, petitioners' contention that the State's
needs could be met by other, less burdensome means would be more persuasive.
Manifestly, article 22 and the general civil procedures address that need. Section
632-a provides not only a method for victims to obtain compensation, however,
it also meets other compelling governmental interests. First, it preserves the
victim's equitable right to assets earned by a criminal as a result of the victimization.
Compare Executive Law 631 with
632-a. If there is no victim a necessary requirement for implementation of the
statute is lacking, section 632-a does not apply and the criminal may discuss
the crime without restraint. E.g., compare
Halmi v. Crime Victims Bd., N.Y. L.J., June 5, 1986, at 12 (N.Y. Sup.
Ct. June 4 1986), aff'd, 128 A.D.2d
411 (prostitution is victimless crime) and
St. Martins Press v. Zweibel, N.Y. L.J., Feb. 26, 1990, at 25 (N.Y. Sup.
Ct. Feb. 24, 1990) (securities fraud based on leaking market information) with
Simon & Schuster v. Fischetti, 916 F.2d 777 (2d. Cir. 1991) and
this case. But if there are victims and the criminal profits from reenactment
or depiction of the crime, then the victims who have been injured by the criminal
act, and the State, which has been called upon to render aid to those victims,
should have the first claim to that money. They should be compensated before
the criminal.

We reject the above arguments for
the Secretary's exercise of an interim rate authority essentially for the same
reasons that the court below rejected them. The Natural Gas Act, like most modern
ratemaking statutes, provides for a plenary ratemaking authority and vests in
it one body, there, the Federal Power Commission. As the Supreme Court held
in Tennessee Gas, an interim authority follows naturally from a plenary authority
under the usual "necessary and proper" clause. What the government has failed
to understand in urging upon us a similar argument in the present case is that
such a holding necessarily depends upon the existence of a plenary authority.
In this case the rate developer has none; the scheme set out in section 5 of
the Flood Control Act of 1944 divides rate authority and vests it in two separate
branches of the government. The government's suggested approach assumes the
validity of their conclusion even before the process of deduction has begun.
But
see Montana Power Co. v. Edwards, 531 F. Supp. 8 (D. Or. 1981) (adopting
the approach attacked in this paragraph); Pacific
Power & Light Co. v. Duncan, 499 F. Supp. 672 (D. Or. 1980) (same);
cf.
Colorado River Energy Distribs. Ass'n v. Lewis, 516 F. Supp. 926 (D.D.C.
1981) (correctly relying on Tennessee Gas
in hydroelectric ratemaking case under section 9(c) of the Reclamation Project
Act of 1939, 43 U.S.C. § 485h(c) (1976), which gives the Secretary plenary authority).
To resolve this case, we are forced to examine the substantive provisions of
the Flood Control and DOE Acts, which we have done in the first three Parts
of this opinion.

A. The Ideal of Tribal Self-Determination Does Not Dilute
Trust Duties.

In the space of 20 pages, the Government's brief transforms
the modern federal policy favoring tribal self-determination from a supposed
"focus" of IMLA to its "central aim." See
Pet. Br. 18, 19, 20, 38. ContraKerr-McGee, 471 U.S. at 200. It repeatedly
offers, never with any citation to authority, that the historic requirement
of federal approval of Indian land transactions is merely to give "backstop
protection" to the tribes, whatever that might be. E.g.,
Pet. Br. 18, 43, 49. ContraTuscarora,
362 U.S. at 118-19; Sunderland, 266
U.S. at 234. The Government unsuccessfully asserted in Mitchell
II that the federal policy favoring Indian self-determination compromises
trust duties. See Brief for the United
States, No. 81-1748, at 35. That argument has gained no force in the intervening
20 years.